Cyberlaw Clinic

In an important victory for freedom of speech, the Massachusetts Supreme Judicial Court issued a decision today in two related cases, Commonwealth v. Barnes and Commonwealth v. Diorio. The cases concerned WBUR‘s OpenCourt project, and the Court’s decision follows a long line of precedent in holding that courts generally may not restrain media organizations or others that attend public court proceedings from reporting on those proceedings. The Cyberlaw Clinic had the privilege to serve as co-counsel to OpenCourt in both cases, alongside Larry Elswit of Boston University’s Office of General Counsel.  Jeff Hermes of the Digital Media Law Project (a frequent Clinic collaborator and a project, like the Clinic, based at Harvard’s Berkman Center for Internet & Society) serves on OpenCourt’s advisory board.

OpenCourt is based at WBUR and funded by the Knight Foundation. It offers a live audiovisual stream from the Quincy District Court in Quincy, MA at its website, along with an archive of recordings of past proceedings. The project seeks to use technology to significantly enhance access by the press and public to the judicial branch.

Shortly after OpenCourt went live last year, it became the subject of two separate emergency petitions to a Single Justice of the Massachusetts Supreme Judicial Court. Both petitions were assigned to Justice Botsford. In one case (Barnes), the Commonwealth argued that the district court should have the ability – at the close of a public proceeding – to order OpenCourt not to publish recordings that it lawfully made during that proceeding or to require specific redactions before the recordings are posted online in order to address concerns about the privacy of victims. In the other (Diorio), a criminal defendant represented by the Committee for Public Counsel Services argued that OpenCourt’s archiving of audiovisual recordings of his pre-trial proceedings impacted his right to receive a fair trial under the Sixth Amendment. Justice Botsford referred both cases to the full SJC; the cases were fully briefed last fall, and the Court heard oral argument in November.

In today’s decision, the Court ruled in favor of OpenCourt’s right to stream and archive court proceedings notwithstanding the objections of the Commonwealth in Barnes and the defendant in Diorio. The Court correctly held that orders like those at issue in the two cases would constitute unlawful “prior restraints,” which violate the First Amendment in all but the most narrow of circumstances:

We conclude that any order restricting OpenCourt’s ability to publish–by “streaming live” over the Internet, publicly archiving on the Web site or otherwise–existing audio and video recordings of court room proceedings represents a form of prior restraint on the freedoms of the press and speech protected by the First Amendment and art. 16 of the Massachusetts Declaration of Rights, as amended by art. 77 of the Amendments to the Massachusetts Constitution. Such an order may be upheld only if it is the least restrictive, reasonable measure necessary to protect a compelling governmental interest.

In reaching this conclusion, the Court rejected arguments that the unique nature of OpenCourt’s operation (including its use of cameras to permit an online stream and archive) suggested a prior restraint analysis was improper. Although there is no constitutional right to record or broadcast court proceedings, the SJC held that “if a court chooses in its discretion to allow recording, the person or entity making it has the same First Amendment freedom to disseminate the information it records as any other member of the print media or public, and the court is limited by the prior restraint doctrine in its ability to restrain the publication of the recording.” Indeed, the Court noted, even if a lower court were found to have abused its discretion by permitting a recording, “there can be no restraint on publication of the recording unless the court also determines that such a restraint is necessary to protect a compelling governmental interest and is the least restrictive reasonable method to do so.”

Considering arguments advanced by the Commonwealth and Diorio, the SJC held that neither had proffered sufficient evidence to support a finding that the interests in question – the interest in protecting the privacy of a minor victim in Barnes and the interest in a criminal defendant’s right to a fair trial in Diorio – were sufficiently compelling to justify a prior restraint. And, even if those interests were sufficiently compelling, the SJC ruled that a prior restraint would not be the “least restrictive means” of addressing the Commonwealth’s and Diorio’s concerns.

Although the Barnes and Diorio cases arise in the context of new technology, the decision issued today is very straightforward. That is because the question of whether a court may restrain one who attends a public court proceeding from disclosing information that he lawfully obtained during that proceeding (whether he records his impressions on paper or film or hard drive or simply preserves those impressions in his own head) is a very simple one: such restraints are strongly disfavored under a long line of First Amendment cases. By applying those cases to the facts before it, the SJC reached the right result.

The Clinic wishes to thank all of the students who contributed to the briefs in the Barnes and Diorio cases, including fall 2011 Harvard Law School Cyberlaw Clinic students Alan Ezekiel, Xiang Li, Matt McDonell, and Tom Spencer and summer 2011 Cyberlaw Clinic intern and New York University School of Law student Ava McAlpin.

The Citizen Media Law Project (CMLP), with the Electronic Frontier Foundation (EFF), and Public Citizen, submitted an amicus curiae brief to the United States Court of Appeals for the Second Circuit, urging the court to apply First Amendment scrutiny to the recently resurgent “hot news misappropriation” doctrine in Barclays Capital, Inc. v. Theflyonthewall.com, Inc.  The coalition worked with Harvard Law School’s Cyberlaw Clinic on the brief.

The case involves a financial news website Theflyonthewall.com (“Fly”) that reports on equity research from Wall Street investment firms.  Several firms sued the website, claiming that Fly’s reporting of their stock recommendations before the market opens constitutes hot news misappropriation.  The United States District Court for the Southern District of New York agreed and issued an injunction requiring Fly to delay its reporting of these recommendations until later in the day.  The injunction applies even when Fly obtains information about the recommendations from published news reports.  Fly appealed to the Second Circuit.

The amicus coalition did not support either side in the case, but rather asked the appellate court to consider the strong First Amendment protections the Supreme Court has developed to encourage and protect the sharing of truthful statements on matters of public concern.  The Supreme Court created the hot news tort in 1918, before the advent of modern free speech jurisprudence, and no court has seriously addressed the tension between the doctrine and the First Amendment.  The brief highlights a long line of Supreme Court cases protecting truthful reporting of lawfully obtained facts and explores how traditional forms of intellectual property such as copyright and trademark include First Amendment “safety valves” to help ensure their protections do not stifle the free flow of information and vigorous public debate.

Amici argue in the brief that First Amendment protection for sharing factual information is especially important in today’s online media environment.  “The hot news doctrine was conceived in an era of top-down newsgathering and dissemination, and the Second Circuit has an opportunity in this case to calibrate the doctrine to today’s democratic, conversational model of news and information sharing,” said CMLP Assistant Director Sam Bayard.  “Fast-paced online dissemination of news, such as we saw in the wake of January’s earthquake in Haiti or the 2009 Iranian elections, could be stalled or chilled if hot news plaintiffs can claim a property right in facts, even for a short time.”

CMLP collaborated with the Cyberlaw Clinic and EFF in preparing the brief.  Sam Bayard of CMLP worked closely on the brief with EFF Senior Staff Attorney Corynne McSherry, Cyberlaw Clinic Assistant Director Christopher Bavitz, and Clinic legal interns Sara Croll, a rising 2L at Harvard Law School, and Andy Sellars, a rising 3L at The George Washington University Law School.  CMLP and the Cyberlaw Clinic are based at Harvard’s Berkman Center for Internet & Society.

The brief can be found at http://www.citmedialaw.org/sites/citmedialaw.org/files/Fly Amicus Brief.pdf.

One of our spring term Cyberlaw Clinic students contributed to a great post over at the Citizen Media Law Project’s blog last week.  The post relates to the scope of Section 230 of the Communications Decency Act and whether the protections afforded by CDA 230 apply to sites that undertake “traditional editorial functions” with respect to content supplied by users

As noted in the post:

Today, it’s settled law that website operators are protected even if they change the content of users’ postings. The leading case interpreting Section 230, Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997), held that “lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions — such as deciding whether to publish, withdraw, postpone or alter content — are barred” (emphasis added). Since Zeran, numerous courts have reaffirmed the principle. The Ninth Circuit, in Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003), held that “minor alterations” did not cost a website operator his immunity when posting another’s email message.

In Donato v. Moldow, 865 A.2d 711 (N.J. Super. Ct. 2005), for instance, a New Jersey court found Section 230 immunity for a defendant who was alleged to have rewritten some users’ posts. Federal courts in Pennsylvania (Dimeo v. Max, 433 F. Supp. 2d 523 (E.D. Pa. 2006)) and Louisiana (Landry-Bell v. Various, Inc., 2005 WL 3640448 (W.D. La. 2005)) have agreed in dicta.

Of course, Section 230’s broad grant of immunity does have its limits. Most critically, it won’t help you if you change a comment in a way that creates defamatory meaning that wasn’t there before.  Cf. Doe v. Friendfinder Network, Inc., 540 F. Supp.2d 288, 297  (D.N.H. 2008) (Section 230 provides “no protection to a service provider for publisher tortious content created by the provider itself”); Anthony v. Yahoo! Inc., 421 F. Supp.2d 1257, 1262-63 (N.D. Cal. 2006) (Yahoo! not immune under CDA for allegedly creating fake profiles on its own dating website).

The CMLP post responded to a recent post on Wired‘s Epicenter blog, which suggested that tech blog Engadget had no choice but to completely disable the comments function on its site in order to avoid liability for materials posted by commenters.